Nelson (Keith) v Sergeant Gayle and Attorney General of Jamaica

• Jurisdiction: Jamaica
• Judgment Date: 17 April 2007
• Judgment citation (vLex): [2007] 4 JJC 2001
• Date: 17 April 2007
• Docket Number: CLAIM NO. C.L. 1998/N - 120
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN CIVIL DIVISION

CLAIM NO. C.L. 1998/N - 120

BETWEEN

KEITH NELSON

CLAIMANT

AND

SERGEANT GAYLE

1 ^ST DEFENDANT

AND

THE ATTORNEY GENERAL OF JAMAICA

2 ^ND DEFENDANT

DAMAGES - False imprisonment

DAMAGES - Malicious prosecution

1 On July 16, 1997, Mr. Keith Nelson was shot and injured by a licensed firearm holder. In addition to his woe, Mr. Nelson was also detained by the police and eventually arrested and charged with assaulting the firearm holder. He was acquitted of the charge, without the case being tried due to the failure of the firearm holder to attend the trial.

2 He has now sued the arresting officer, Sergeant (now Superintendent) Wilford Gayle, for compensation for what he says was a wrongful imprisonment and prosecution. In light of the change in rank, and to avoid confusion, I shall refer to the officer as, "Mr. Gayle". No disrespect is intended. Mr Nelson claims that Mr. Gayle wrongfully executed his authority because of the police officer's improper bias towards the firearm holder, whom, it so happens, was a retired superintendent of police.

3 Mr. Gayle denies that he acted through any wrongful motive. He insists that he acted in accordance with a report made to him by the firearm holder and indeed Mr Nelson's own failure to give an account of the shooting when Mr. Gayle requested it of him.

4 The issues to be decided are; firstly, what occurred on that early morning between the police and Mr. Nelson and secondly, whether Mr. Gayle was motivated by anything other than a desire to bring an offender to justice. Although the issues do not strictly include Mr. Nelson's interaction with the firearm holder, there will be need to make reference to that interaction to assist in resolving them.

5 Mr. Nelson's account:

6 Mr. Nelson testified that he was, at the time of this incident, an architectural draftsman and a structural engineering technician. He says that he was then employed to a Mr. Glasford Christie, who, said he, conducted business under the style of G. Christie and Associates, at premises No. 4 Three Views Avenue. It is significant to note that the incident is agreed by both parties to have occurred at those premises.

7 In his testimony Mr. Nelson says that he was working late at the premises, on the evening of the 15 ^th July and decided to take a break. He says that he went to a bar at the corner of Three Views Avenue and Red Hills Road and had alcoholic drinks. According to him he returned to No. 4 Three Views Avenue and decided to sleep in an old dilapidated Lincoln Continental motor-car which was in the yard there. While lying in the car he says that he heard an explosion and was shot in his left leg below his knee. He says that he got up, cried out and went to the rear of the premises where he sought refuge in a bathroom. He remained there, afraid to call for help, until about day-break when he heard someone calling out, "police". He then revealed his location and showed himself.

8 According to him, he told Mr. Gayle, who was among the police party that had attended the premises, that he worked there. He says that he recounted to them what had occurred. Two other occupants of the premises also confirmed to the police party at that time that Mr. Nelson did indeed work there. Nonetheless, he was taken to the Marverly police station and thereafter to the Kingston Public Hospital, where he was treated and taken back to the police station despite the protests of the medical team.

9 At the police station he was subjected to "the silent treatment" when he enquired what it was that he had done. He says that he was ignored. He says that although no one accused him of anything while he was at Three Views Avenue, it was while he was at the police station that he heard Mr. Gayle on the telephone and he discovered that it was the next door neighbour, retired Superintendent Shirley, who had shot him. He testified that the police then deliberated as to what to charge him with, and then decided on the charge of assault at common law. He remained in custody until the 18 ^th July and attended court on that date. Three months and three further court appearances later, no order was made against him and the prosecution was brought to an end, in his favour.

10 Mr. Nelson was strenuously cross-examined, but the effort only served to reinforce his familiarity with his craft, the premises, the occupants thereof and the derelict Lincoln Continental. Despite the initial impression given by his sleeping in an old motor-car at night, he proved to be an intelligent, articulate witness, bordering on the loquacious. His evidence that he was a graduate of a tertiary educational institution was credible.

11 The account of the defence:

12 The defence produced a statement from retired Superintendent Shirley, who has since died. According to Mr. Shirley he had heard a noise outside his house at about 2:15 on the morning in question. He says that he armed himself with his firearm, and went out to investigate. It was then that he saw, across the fence, a man breaking into one of his next door neighbour's cars. The man was beside the car. He says that he accosted the man, who promptly "jammed at (him) with an object", and used some indecent language. Mr. Shirley says, "I jumped and was so frightened I fired one shot in his direction". He says that the man screamed, dropped the object which proved to be a piece of iron pipe, and ran to the side of the premises. Mr. Shirley...